[Cite as State v. Jones,

.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 20CA000020 LEO L. JONES : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Knox County Court of Common Pleas, Case No. 20CR09-0223

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 1, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. MCCONVILLE TODD W. BARSTOW Knox County Prosecutor 261 W. Johnstown Rd., Ste. 204 117 E. High Street, Ste 234 Columbus, OH 43230 Mount Vernon, OH 43050 [Cite as State v. Jones,

.]

Gwin, P.J.

{¶1} Appellant Leo L. Jones appeals the November 13, 2020 judgment entry of

the Knox County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On September 9, 2020, the Knox County Grand Jury returned an indictment

charging appellant with failure to provide change of address, in violation of R.C.

2950.05(F)(1), a felony of the third degree. Appellant is required to register as a Tier III

sex offender based upon previous sex offense convictions. Appellant registered an

address with the Knox County Sheriff on June 12, 2020, but appellant was not present

and living at that address from August 19, 2020 through September 3, 2020.

{¶3} On October 15, 2020, appellant appeared with counsel and entered a guilty

plea to the charge.

{¶4} Appellant signed a “plea of guilty” form. He stated his plea of guilty was

freely, voluntarily, knowingly, and intelligently made. Appellant also acknowledged that

he was fully informed by his attorney and the court of all the constitutional rights he was

waiving, “including my right to a jury trial * * *, my right to confront witnesses against me,

my right to have compulsory process for obtaining witnesses in my favor, and my right to

require the State of Ohio to prove my guilt beyond a reasonable doubt at a trial at which

I cannot be compelled to testify against myself.”

{¶5} Appellant also signed a “Plea Agreement Disclosure and Acknowledgment.”

He stated he understood that his “attorney could have obtained witnesses by subpoena

to testify in [his] defense at trial.” «County» County, Case No. «CASE_NO»0 3

{¶6} At the plea hearing, appellant confirmed he was satisfied with his attorney,

and confirmed his attorney reviewed the written plea agreement with him. The trial court

went through the maximum penalty appellant faced, and appellant stated he understood.

Appellant also stated he recalled signing the plea form.

{¶7} The trial court continued, “your plea cannot be accepted unless you

understand the constitutional rights that you’re giving up.” Appellant responded “yes,” he

understood that: he has the right to a jury or the right to have the judge hear his case; he

understood the prosecutor had to prove him guilty beyond a reasonable doubt of every

element of the crime he was charged with; he understood his attorney could have cross-

examined anyone who testified against him; and he understood he would not have to

testify. The trial court stated, “And you understand that at the trial your attorney could

have obtained witnesses by subpoena to testify in your defense?” Appellant responded,

“yes.”

{¶8} The trial court asked appellant if he had any questions, and appellant stated,

“No.” Appellant confirmed he voluntarily waived and gave up all of the constitutional rights

discussed. Based upon appellant’s representations, the trial court found appellant had

“been informed of his constitutional rights, [and] ha[d] made a knowing, intelligent, and

voluntary wavier of those rights.” The trial court accepted appellant’s guilty plea and found

him guilty of the charge.

{¶9} The trial court issued a journal entry on October 16, 2020, stating it

personally addressed appellant as to the matters contained in Criminal Rule 11(C)(2),

and finding appellant’s plea was freely, voluntarily, and intelligently made. The trial court

referred the matter for a presentence investigation, and set a sentencing date. «County» County, Case No. «CASE_NO»0 4

{¶10} The trial court sentenced appellant to twenty-four (24) months in jail. The

trial court issued a sentencing entry on November 13, 2020.

{¶11} Appellant appeals the November 13, 2020 judgment entry of the Knox

County Court of Common Pleas and assigns the following as error:

{¶12} “I. APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY, AND

VOLUNTARILY ENTER HIS PLEA OF GUILTY, IN VIOLATION OF HIS RIGHT TO DUE

PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN, OF THE OHIO

CONSTITUTION.”

I.

{¶13} In his assignment of error, appellant contends his plea was not knowingly,

intelligently, and voluntarily made. Specifically, appellant argues the trial court failed to

adequately advise him that he was “waiving the right to have compulsory process for

obtaining witnesses in the defendant’s favor,” when the trial court stated, “you understand

that at the trial your attorney could have obtained witnesses by subpoena to testify in your

defense?”

{¶14} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle,

,

(1996). “An

appellate court determining whether a guilty plea was entered knowingly, intelligently, and

voluntarily, conducts a de novo review of the record to ensure that the trial court complied «County» County, Case No. «CASE_NO»0 5

with the constitutional and procedural safeguards.” State v. Ballard,

,

(1981).

{¶15} Criminal Rule 11(C) requires a trial judge to determine whether a criminal

defendant is fully informed of his or her rights and understands the consequences of his

or her guilty plea. State v. Barker,

,

,

.

Of particular relevance to this case is Criminal Rule 11(C)(2)(c), which provides, “[i]n

felony cases the court * * * shall not accept a plea of guilty or no contest without first

addressing the defendant personally and * * * informing the defendant and determining

that the defendant understands that by the plea the defendant is waiving the rights * * *

to have compulsory process for obtaining witnesses in the defendant’s favor * * *.” The

underlying purpose of Rule 11(C) is to convey to the defendant certain information so that

he or she can make a voluntary and intelligent decision as to whether to plead guilty.

State v. Ballard,

,

(1981).

{¶16} The Ohio Supreme Court has held that strict compliance with Rule

11(C)(2)(c) is required when advising a defendant of the constitutional rights he or she is

waiving by pleading guilty or no contest. State v. Veney,

, 2008-Ohio-

5200,

; State v. Barker,

,

,

. The Supreme Court recently addressed this issue in State v. Miller,

,

,

, and held, “trial courts must strictly comply with

11(C)(2)(c) and failure to do so cannot be deemed harmless.” Included in the list of

constitutional rights is “the right to compulsory process to obtain witnesses.”

{¶17} The Supreme Court of Ohio has repeatedly held that while the preferred

method of informing a criminal defendant of his or her constitutional rights during the plea «County» County, Case No. «CASE_NO»0 6

colloquy is to use the language contained in Criminal Rule 11(C), a trial judge is not

required to recite the provision of 11(C)(2)(c) verbatim. State v. Miller,

,

,

; State v. Veney,

, 2008-Ohio-

5200,

; State v. Barker,

,

,

. To “strictly comply with the rule, the trial court must orally advise the defendant, in

a manner reasonably intelligible to that defendant, that the plea waives the rights

enumerated in the rule.”

{¶18} Appellant argues the trial court did not strictly comply with Rule 11(C)(2)(c)

because the trial court did not tell him he was waiving the right to have the court compel

enforcement of a subpoena. We disagree. The language used by the trial court in this

case mirrors language that has been found to strictly comply with Rule 11(C)(2)(c).

{¶19} The Supreme Court has held that a trial court complies with Criminal Rule

11(C) and it is a reasonably intelligible explanation to the defendant of his right to

compulsory process when the right is described as the “right to call witnesses to speak

on your behalf.” State v. Barker,

,

,

.

The terms “subpoena” or “compel” were not required.

The Ohio Supreme Court also

recently held that the statement, “your lawyer can issue subpoenas to help you get them

[witnesses] here to testify for you,” strictly complied with Rule 11(C)(2)(c). State v. Miller,

,

,

.

{¶20} Other courts have similarly held that language stating counsel may

subpoena witnesses for the defendant was sufficient for strict compliance with Rule

11(C)(2)(c)’s compulsory process requirement. State v. Coleman, 9th Dist. Summit No.

26008,

(statement that “by pleading guilty he was giving up the right to «County» County, Case No. «CASE_NO»0 7

have his counsel subpoena and cross-examine witnesses” was sufficient); State v. Pigge,

4th Dist. Ross No. 09CA3136,

(statement that guilty plea waives the

right to subpoena witnesses sufficiently advises a defendant in a reasonably intelligible

manner of his compulsory process right); State v. Ward, 2nd Dist. Montgomery No.

21044,

(statement that the defendant was “giving up his right to have his

own witnesses come in here and testify for him” was sufficient for strict compliance); State

v. Parks, 8th Dist. Cuyahoga No. 86312,

(use of word “subpoena”

adequately informs defendant of his right to compulsory process).

{¶21} In this case, we find the trial court strictly complied with the compulsory

process portion of Rule 11(C)(2)(c) because the trial court used language understandable

and reasonably intelligible to appellant, such that he could make a voluntary and

intelligent decision whether to plead guilty knowing that the constitutional right to

compulsory process would not be exercisable if he did plead guilty.

{¶22} Further, the “plea of guilty” form and “plea disclosure” documents, both

signed by appellant, address the issue of compulsory process, and are additional

evidence that the trial court adequately advised appellant of his right to compulsory

process. State v. Barker,

,

,

(when

trial court addresses all the constitutional rights in an oral colloquy, a reviewing court

should be permitted to consider additional record evidence such as a change of plea

form); State v. Coleman, 9th Dist. Summit No. 26008,

; State v. Pigge,

4th Dist. Ross No. 09CA3136,

. The “plea disclosure form” states

appellant understood his “attorney could have obtained witnesses by subpoena to testify

in [his] defense at trial.” The plea of guilty form states appellant was fully informed by his «County» County, Case No. «CASE_NO»0 8

attorney and the court of the constitutional rights he was waiving, including his “right to

have compulsory process for obtaining witnesses in [his] favor.”

{¶23} Defendant was represented by counsel throughout the proceedings and, at

the change of plea hearing, he affirmatively responded when the trial court asked if his

counsel had gone over the plea agreement to his satisfaction and if he understood the

rights he was waiving. Nothing in the record suggests that appellant did not understand.

At no point during the plea hearing did he indicate any sort of confusion over the meaning

of any of the court’s statements or the rights he was waiving by pleading guilty. Rather,

every time the court asked him if he understood, appellant indicated he did. At the

conclusion of the plea hearing, the trial court asked appellant if he had any questions.

Appellant responded, “no.”

{¶24} We find the trial court used easily understood words conveying to appellant

that he would be waiving certain constitutional rights if he pled guilty and that exchange

resulted in appellant’s plea being voluntarily, knowingly, and intelligently made. The trial

court strictly complied with Criminal Rule 11(C)(2)(c). Appellant’s assignment of error is

overruled. «County» County, Case No. «CASE_NO»0 9

{¶25} The November 13, 2020 judgment entry of the Knox County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Wise, John, J., and

Wise, Earle, J., concur [Cite as State v. Jones,

.]